Southwest Pipe Services, Inc and Joe Briers v. Sunbelt Rentals, Inc.

Opinion

ACCEPTED 01-15-00124-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 6/26/2015 7:04:12 PM CHRISTOPHER PRINE CLERK

CAUSE NO. NO. 01-15-00124-CV

IN THE FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 1st COURT OF APPEALS 6/26/2015 7:04:12 PM CHRISTOPHER A. PRINE HOUSTON Clerk

___________________

SOUTHWEST PIPE SERVICES, INC. and JOE BRIERS

Appellant

vs.

SUNBELT RENTALS, INC.

Appellees

__________________________________

APPEALED FROM THE COUNTY COURT AT LAW NO. 2 OF FORT BEND COUNTY, TEXAS _______________________________________ APPELLANT’S BRIEF _______________________________________

Jason A. Powers SBOT 24027745 P.O. Box 272425 Houston, Texas 77277 Tele: (832) 647-8493 Fax: (832) 415-0593 jason@jasonapowers.com

APPELLANT REQUESTS AN ORAL ARGUMENT CAUSE NO. NO. 01-15-00124-CV

IN THE

1st COURT OF APPEALS

HOUSTON ___________________

APPEALED FROM THE COUNTY COURT AT LAW NO. 2 OF FORT BEND COUNTY, TEXAS _______________________________________ IDENTITIES OF PARTIES COUNSEL _______________________________________

Jason A. Powers ORLANDO & ORLANDO SBOT 24027745 Monica Schulz Orlando P.O. Box 272425 440 Louisiana, Ste 1110 Houston, Texas 77277 Houston, Texas 77002 Tele: (832) 647-8493 Tele: (713) 521-0800 Fax: (832) 415-0593 Fax: (713) 521-0842 jason@jasonapowers.com monicaorlando@orlandollp.com ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEES

ii TABLE OF CONTENTS

TABLE OF CONTENTS ...................................................................................... iii

TABLE OF AUTHORITIES ................................................................................ iv

STATEMENT OF THE CASE ............................................................................. 6

QUESTIONS PRESENTED .................................................................................. 8

SUMMARY OF THE ARGUMENT .................................................................... 9

ARGUMENT & AUTHORITIES ....................................................................... 10

CERTIFICATE OF SERVICE ........................................................................... 13

ADDENDUM ............................................................. Error! Bookmark not defined.

iii TABLE OF AUTHORITIES

CASES Casso v. Brand, 776 S.W.2d 551, 556 (Tex. 1989)................................................ 10

City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979) ............................................................................................................................. 10

Collins v. County of El Paso, 954 S.W.2d 137, 145 (Tex.App.—El Paso 1997, pet. denied)................................................................................................................. 10

Huckabee v. Time Warner Entm’t Co., 19 S.W.3d 413, 422 (Tex.2000) .............. 10

Nixon. v. Mr. Propery Mgmt. Co., 690 S.W.2d 546, 549 (Tex. 1985) ................... 10

STATUTES

Civil Practice and Remedies Code section §33.004 (a). ........................................ 11

Civil Practice and Remedies Code section 33.011(6) ........................................ 9, 11

Civil Practice and Remedies Code section §33.004(f). .......................................... 11

Civil Practice and Remedies Code section 33.004 ....................................... 9, 11, 12

iv CAUSE NO. NO. 01-15-00124-CV

APPEALED FROM THE COUNTY COURT AT LAW NO. 2 OF FORT BEND COUNTY, TEXAS _______________________________________ APPELLANT’S BRIEF _______________________________________

Appellants, Southwest Pipe Services, Inc. and Joe Briers submits their brief. Appellants will be referred to as Appellants or SWP. Appellees will be referred to as Appellees or Sunbelt.

v STATEMENT OF THE CASE

A. Overview of Facts

Joe Briers is the owner of Southwest Pipe Services, Inc. (SWP). SWP is a

company that removes abandoned oil, gas and water pipelines, cleans the pipe in

accordance with EPA standards, and resells the pipe on the secondary market.

SWP rented equipment from Sunbelt for the removal of a pipeline in Upshur

County, Texas. (Upshur pipe) SWP hired an independent contractor, Rodney

Beshears, to remove the pipeline. Immediately thereafter Beshears started removing

the Upshur pipe and began selling it out the back door to a local scrap dealer. SWP

refused to pay for the rental equipment because SWP did not utilize the rental

equipment. Sunbelt filed suit against SWP for breach of contract. SWP answered then

filed a Motion to Leave to Designate a Responsible Third Party designating Rodney

Beshears as a responsible third party. Sunbelt failed to file a response to SWP’s

motion, thus Beshears was designated as a responsible third party as a matter of law.

Sunbelt never contested the designation and has not cross-appealed the order granting

Beshears as a responsible third party.

Sunbelt filed a Motion for Summary Judgment (First Motion) on July 21, 2014

and set the Motion for oral hearing on September 3, 2014. SWP responded to

Sunbelt’s First Motion, and in response, Sunbelt passed the hearing and reset the First

Motion to October 7, 2014 per correspondence dated September 3, 2014.

6 On September 19, 2014 Sunbelt filed an Amended Motion for Summary

Judgment (Second Motion), attempting to correct the errors complained of in SWP’s

Response. The Second Motion was set for hearing on November 12, 2014. SWP filed

a response to the Second Motion that mimicked the Response to the First Motion,

except for the objection of the lack of the business records affidavit that was made in

the response to the First Motion. Sunbelt filed no reply or objection to SWP’s

response to the First Motion or the Second Motion.

The Court heard Sunbelt’s Second Motion on November 12, 2014. The Court

granted Sunbelt’s Motion. There was no record of the hearing.

.

7 QUESTIONS PRESENTED

I. THE COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF SUNBELT RENTALS, INC.

8 SUMMARY OF THE ARGUMENT

The Trial Court erred in granting summary judgment in favor of Sunbelt

because a fact issue existed by virtue of Rodney Beshears being a designated a

responsible third party.

On August 21, 2013, SWP filed a motion designating Rodney Beshears as a

responsible third party. Sunbelt never filed a response to SWP’s Motion.

Rodney Behshears is a responsible third party within the meaning of Texas

Civil Practice and Remedies Code section 33.011(6) because said party caused or

contributed to the harm for which recovery of damages is being sought. CPRC

§33.011(6). Defendants are entitled to designate a responsible third party under Texas

Civil Practice and Remedies Code section 33.004.

Any arguments against the applicability of CPRC 33.004 have been waived by

the Plaintiff, as well as any complaints in this appeal. The Plaintiff’s never filed a

response to SWP’s Motion to Leave. The Plaintiff never made an objection to the

designation, even though it was used in the defense of both Motions for Summary

Judgment and Appellees never filed a cross-appeal complaining of the designation of

Rodney Beshears. For the Court to deny the designation, the Court would be stepping

into the Appellees shoes and making objections that were never made and affording

relief never requested.

SWP should be allowed to proceed with Beshears as a responsible third party.

9 I. ARGUMENT & AUTHORITIES

The purpose of the summary judgment procedure is to permit the trial court to

promptly dispose of cases that involve unmeritorious claims or untenable defenses.

See City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678

(Tex.1979). However, Texas law is sensitive to the notion that summary judgment

should not allow a trial judge to infringe on the jury’s role as the fact-finder. See

Huckabee v. Time Warner Entm’t Co., 19 S.W.3d 413, 422 (Tex.2000). Summary

judgment procedure should not deprive litigants of their right to a trial by jury or to try

a case by affidavit and deposition testimony. See Collins v. County of El Paso, 954

S.W.2d 137, 145 (Tex.App.—El Paso 1997, pet. denied).

A non movant in a traditional summary judgment proceeding is not required to

produce summary judgment evidence until after the movant establishes it is entitled to

summary judgment as a matter of law. Casso v. Brand, 776 S.W.2d 551, 556 (Tex.

1989). In considering a motion for summary judgment, the court must view the

evidence in the light most favorable to the nonmovant and must indulge every

reasonable inference and resolve all doubts in favor of the nonmovant. Nixon. v. Mr.

Propery Mgmt. Co., 690 S.W.2d 546, 549 (Tex. 1985). The summary judgment

procedure should not deprive litigants of their right to trial. Collins v. County of El

Paso, 954 S.W.2d 137, 145 (Tex.App.—El Paso 1997, pet. denied).

10 The Trial Court erred in granting summary judgment in favor of Sunbelt

because a fact issue existed by virtue of Rodney Beshears being a designated a

On August 21, 2013, SWP filed a motion designating Rodney Beshears as a

responsible third party. Plaintiff never filed a response or objection to SWP’s Motion.

The Civil Practices and Remedies Code states that a defendant must file a

motion for leave to designate a responsible third party at least 60 days before the trial

date. CPRC §33.004 (a). The Court shall grant leave to designate the named person

as a responsible third party unless another party files an objection to the motion for

leave on or before the 15th day after the date the Motion is served. CPRC §33.004(f).

SWP filed its Motion on August 21, 2013. Sunbelt never responded within the

time frame allotted by statute, therefore the motion was granted.

Rodney Behshears is a responsible third party within the meaning of Texas

Civil Practice and Remedies Code section 33.011(6) because said party caused or

contributed to the harm for which recovery of damages is being sought. CPRC

§33.011(6). Defendants are entitled to designate a responsible third party under Texas

Any arguments against the applicability of CPRC 33.004 have been waived by

the Plaintiff, as well as any complaints in this appeal. SWP should be allowed to

proceed with Rodney Beshears as a responsible third party.

11 II. CONCLUSION

The Court erred in granting summary judgment. A fact issue existed by virtue

of Rodney Beshears being designated a responsible third party. Any complaints as to

the applicability of CPRC 33.004 has been waived by Appellees. Therefore the Court

should reverse the Court’s order granting summary judgment and remand this matter

for a new trial with Rodney Beshears as a responsible third party.

III. PRAYER

WHEREFORE, PREMISES CONSIDERED, Southwest Pipe Service, Inc.,

Appellant, prays that this Honorable Court reverse the Trial Court’s ruling granting

summary judgment, remand this matter back to the trial court, allowing Rodney

Beshears to remain a responsible third party.

12 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of Appellant’s Brief was delivered to all counsel of record on the 26th day of June via Certified U.S. Mail, return receipt requested and/or via electronic service in accordance with the Texas Rules of Civil Procedure and the Texas Rules of Appellate Procedure. The documents were delivered to: ORLANDO & ORLANDO, Monica Schulz Orlando, 440 Louisiana, Ste 1110, Houston, Texas 77002; monicaorlando@orlandollp.com

________________________________ Jason A. Powers State Bar No. 24027745 jpowers@powersandslay.com

13 CAUSE NO. NO. 01-15-00124-CV

APPEALED FROM THE COUNTY COURT AT LAW NO. 2 OF FORT BEND COUNTY, TEXAS _______________________________________ SIGNATUTRE PAGE _______________________________________

14 This Brief is respectfully submitted by:

JASON A. POWERS, ATTORNEY

______________________________________ Jason A. Powers SBOT 24027745 P.O. Box 272425 Houston, Texas 77277 Tele: (832) 647-8493 Fax: (832) 415-0593 jason@jasonapowers.com Attorney for Appellants

THIS BRIEF CONTAINS _1172_ WORDS